The Supreme Court has already called the constitutional issue presented here "undeniably important": whether the First Amendment tolerates a negligent-protest theory that substitutes the mere foreseeability of a stranger's violence for intent. After a decade of litigation, full discovery, and another appeal, every threshold obstacle is gone. At last, the question is cleanly presented….

Every obstacle that complicated Supreme Court review in 2020 is now gone. The state-law uncertainty that prompted the Court's vacatur has been resolved. Discovery is complete. The pleading-stage assumptions have been tested. The district court entered final summary judgment. Counterman intervened, and the panel expressly held that it changes nothing. The en banc court has now declined to intervene.

The constitutional question is therefore squarely presented and unavoidable: may a political speaker be held liable under a negligence theory for an unidentified stranger's violence without proof that the speaker authorized, directed, ratified, or intentionally incited that violence? Claiborne, Counterman, and Brandenburg answer no. Our court now answers yes….

The Court should grant review and restore the constitutional line between advocacy and violence. Political speakers may be held to account for violence they commit, authorize, direct, ratify, or intentionally incite. But they may not be conscripted as insurers of a crowd—or as substitute defendants for an unknown assailant—simply because they were visible, prominent, and nearest the microphone.

This last paragraph is addressed to the Supreme Court; Judge Willett's opinion, in keeping with frequent legal usage, uses "the Court" to refer to the Supreme Court and "the court" to refer to the Fifth Circuit itself.

And here are some excerpts from the body of the opinion:

Baton Rouge Police Officer John Ford was grievously injured when someone hurled a rock or piece of concrete into his face during a political protest. The assailant has never been identified. Neither has the assailant's affiliation, motive, or connection—if any—to DeRay Mckesson. Yet today the court sends Mckesson to trial—not because evidence connects him to the assault, but because he was a prominent activist, allegedly helped lead demonstrators into a roadway, and could have foreseen that disorder might follow.

The First Amendment does not permit prominence to substitute for proof. Under NAACP v. Claiborne Hardware Co. (1982), liability for another person's violence demands proof that the defendant authorized, directed, or ratified the specific tortious activity —or that his speech was directed to inciting or producing imminent lawless action and likely to do so under the demanding rule of Brandenburg v. Ohio (1969). And Counterman v. Colorado confirms why ordinary negligence cannot do that work when legal sanctions burden political advocacy at the First Amendment's core. Negligence supplies neither personal responsibility nor the culpable mental state the Constitution demands.

The panel reaches the opposite result through four substitutions. An alleged direction to obstruct traffic becomes a direction to assault an officer; prominence in a national movement becomes command of a particular crowd; proximity becomes causation; and foreseeability becomes intent. Those substitutions evade three constitutional requirements: Claiborne demands personal responsibility and direct, proximate causation; Counterman rejects objective negligence and requires a culpable mental state tied to the conduct for which liability is imposed; and Brandenburg requires intent to produce imminent lawless action and a likelihood that the action will occur. The panel supplies none. Together, its substitutions erase the constitutional boundary between advocacy and violence.

Strip away the euphemisms, and the rule is stark: a freestanding tort of negligent protest—liability imposed on Mckesson not for causing Ford's injury, but for failing to foresee that someone else might cause it.

Nor will the rule remain confined to Mckesson, Black Lives Matter, or protests against police conduct. It will govern every cause and every viewpoint. The most visible speaker may become the ready-made defendant whenever an unidentified person in the crowd—even an interloper or provocateur—turns violent. The predictable consequence is self-censorship. Citizens will think twice before organizing, promoting, attending, or lending their names to public causes. Civil damages can chill political expression as surely as criminal punishment—and often more effectively….

Ford's injuries are abhorrent. He deserves a remedy from whoever is legally responsible for them. But grievous injury does not relax the First Amendment's demand for proof. The Constitution does not let courts solve the mystery of an unknown assailant by turning the most recognizable speaker into a substitute defendant.

Those inclined to applaud today's result should consider how the same rule will operate in tomorrow's case. Today's defendant is associated with Black Lives Matter. Tomorrow's may be a gun-rights advocate, a pro-life leader, a pastor protesting a government mandate, or parents addressing a school-board meeting. Constitutional rules cannot turn on the cause, the crowd, or the speaker. The First Amendment must protect advocacy without regard to whether the cause is popular or unpopular, favored or disfavored. Otherwise, constitutional guarantees become fair-weather guarantees….

Claiborne arose from a civil-damages judgment imposed after a political boycott that included both protected advocacy and violence. The Supreme Court reversed and identified three possible bases for liability: (1) unlawful conduct the defendant personally committed; (2) another person's unlawful conduct, but only upon proof that the defendant "authorized, directed, or ratified specific tortious activity"; or (3) speech satisfying the constitutional test for incitement.

Those categories enforce a foundational First Amendment principle: association may be collective, but culpability is personal. Membership in a movement, participation in a demonstration, even leadership of a political campaign or rally does not make a person answerable for every unlawful act committed by someone associated with the cause. "Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence."

Ford does not contend that Mckesson threw the rock. No evidence shows that he asked anyone to throw objects, approved the assault, ratified it afterward, or even knew the assailant. The negligence theory instead treats Mckesson's alleged direction of demonstrators into a roadway as creating a foreseeable risk of violence.

That theory changes the subject—and with it, the constitutional inquiry. The "specific tortious activity" for which Ford seeks damages is the assault that shattered his jaw—not the obstruction of traffic. Claiborne's three verbs—authorized, directed, ratified—require a personal nexus between the defendant and the violence of others.They are not satisfied merely because Mckesson allegedly directed demonstrators into the road. Intent to commit one unlawful act does not establish authorization of another person's violent felony. I previously called this maneuver by its true name: a "negligent protest" theory that lets a stranger's foreseeable violence stand in for Mckesson's own wrongdoing.

Our 2023 decision purported to require a "sufficiently close relationship" between the leader's conduct and the third party's tort, yet deemed that requirement satisfied whenever a leader negligently created conditions in which injury was likely. That formulation supplies no meaningful boundary. Large demonstrations, marches, labor actions, sporting celebrations, and political rallies all carry some foreseeable risk that an attendee will act unlawfully. If furnishing the occasion for possible violence is enough, Claiborne's personal-responsibility rule disappears precisely when it is needed most.

Claiborne itself exposes the gulf. Charles Evers unquestionably led the boycott. His speeches included threatening language, and violence did occur. Even so, the Court refused to hold him liable without proof that he had authorized, directed, or ratified the particular violence at issue. Mckesson's connection to the Baton Rouge assault is far weaker: the assailant is unknown, and no evidence ties that person's act to anything Mckesson said or did….

Counterman v. Colorado (2023) identifies a second constitutional defect: Ford's theory rests on objective negligence untethered to the assault. The panel dismisses Counterman as an inapposite criminal true-threat case. The Supreme Court's holding concerned true threats, but its reasoning speaks directly to the constitutional problem here.

Counterman rejected objective negligence for threatening speech and required at least subjective recklessness. More important here, the Court distinguished incitement. Incitement decisions "demand more," the Court explained, because political advocacy lies "a hair's-breadth away" from punishable incitement. Those cases require specific intent—purpose or knowledge—to prevent legal sanctions from bleeding into "dissenting political speech at the First Amendment's core." The Court cited Claiborne as part of that line.

A negligence action arising from a protest against government conduct sits squarely within that concern. The panel's rule imposes liability without proof that Mckesson intended violence, knew that his own words or conduct would cause it, or consciously disregarded a substantial risk that they would do so. It asks only whether a reasonable person should have foreseen some confrontation at some point.

That is the very objective-negligence standard Counterman rejected, applied in a setting where the Court said the Constitution demands more protection, not less. Counterman does not mechanically convert every First Amendment case into a true-threat prosecution. It does, however, foreclose the premise underlying our 2023 decision—that protest-related speech may support liability for another person's violence with no "intent condition." …

The panel says Counterman is satisfied because a jury could find that Mckesson intended "disorder" when he allegedly directed people into a public street. The panel invokes the right mens rea but attaches it to the wrong act.

The required mental state must attach to the violence for which Ford seeks damages—a rock thrown into his face, not delayed traffic. Intent to obstruct traffic is not intent to shatter an officer's jaw. Proof that Mckesson intended civil disobedience does not show that he intended, knew of, or consciously disregarded a substantial risk of this particular assault by an unknown person. Otherwise, any intent to violate a minor law during a protest would expose the speaker to liability for every foreseeable crime that followed….

Judge James Ho disagreed, and wrote a short opinion concurring in the denial of rehearing en banc:

The dissent calls for principled enforcement of the First Amendment: … "The First Amendment must protect advocacy without regard to whether the cause is popular or unpopular, favored or disfavored." I certainly agree: "Popular speech doesn't need protection. It's only when speech is unpopular that you need the First Amendment." … So our rulings must be scrupulously viewpoint neutral….

Where I ultimately part company with my distinguished dissenting colleague is that, unlike him, I see no violation of viewpoint neutrality in this case—only the dutiful application of a simple principle: "The First Amendment protects protest, not trespass." This principle "applies with equal force to pro-police protestors" (or to, say, "pro-life and pro-choice protestors alike") "who unlawfully obstruct a public highway." And Plaintiff has presented ample evidence for a jury to put this case in the category of trespass, not protest—as our court has already detailed on more than one occasion.

And an excerpt from the 2023 panel majority in the case, which set forth the First Amendment rule followed by the panel opinion that was the subject of the en banc call; it's written by Judge Jennifer Walker Elrod, joined by Judge Grady Jolly:

[T]he negligence theory Doe pursues fits quite comfortably into two of the theories for protest-leader liability identified in Claiborne.

First, Doe plausibly alleges that Mckesson "directed … specific tortious activity" insofar as Doe contends "that his injuries were the result of Mckesson's own tortious conduct in directing an illegal and foreseeably violent protest." Claiborne reaffirmed that the First Amendment does not prohibit States from imposing tort liability even if the tort occurs in the context of expressive activity. The conduct the State deems unlawful here—creating unreasonably dangerous conditions—is a quintessential tort. Plainly that is within the scope of "tortious activity" contemplated by the Claiborne Court

The only other thing required for this cause of action to accord with the First Amendment is that it be sufficiently tailored to target the tortious activity without sweeping up legitimate expressive conduct…. [W]e are confident that Doe's negligence theory satisfies that requirement.

Start with the "breach" element. The State of Louisiana does not put ordinary protest leaders at risk by recognizing that Mckesson's actions fell below a reasonable standard of care. On the contrary, Doe has alleged that Mckesson created unreasonably unsafe conditions in at least three significant respects. First, he organized the protest to begin in front of the police station, obstructing access to the building. Second, he personally assumed control of the protest's movements, but failed to take any action whatsoever to prevent or dissuade his fellow demonstrators once they began to loot a grocery store and throw items at the assembled police. And third, Mckesson deliberately led the assembled protest onto a public highway, in violation of Louisiana criminal law.

Plainly the State has a strong interest in preventing unreasonably dangerous conduct such as this. But neither does that standard unnecessarily sweep in expressive conduct. Protest leaders who organize their demonstrations with at least a minimal level of care will not be responsible for any actions taken by rogue participants.

And then there is the cause-in-fact requirement. It is not enough that Doe show that Mckesson breached his duty of care—he must also prove that Mckesson's actions were a necessary antecedent to Doe's injuries. Restated, Doe must prove that he would not have been injured but for the manner in which Mckesson organized and led the protest. That is a tall task, and the standard will only be met in the exceptional cases where, as here, the well-pleaded allegations support the inference that the leader's specific actions caused the plaintiff's injuries.

To recap, where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries, that defendant has "directed" his own "tortious activity" for purposes of Claiborne. In these circumstances, imposing liability goes far more to preventing tortious conduct than it does to suppressing any legitimate expressive activity. The cause of action therefore satisfies Claiborne's demand for "precision of regulation."

The dissenting opinion reads Claiborne as limiting the authorize/direct/ratify theory of liability to torts committed by someone other than the defendant, but that reading conflicts with settled First Amendment law. It is well-established that expressive activity is not a defense to an individual's own unlawful conduct. It follows that a protest leader who commits a tort cannot avoid liability for that tort merely by pointing to his participation in a protest. Doe may pursue claims against Mckesson even though the latter did not throw the projectile because, according to the complaint, Mckesson committed an intendent tort that caused Doe's injuries.

In addition, the dissenting opinion contends that Mckesson cannot be held liable for his unviolent conduct because the Supreme Court declined to impose liability on Evers in Claiborne. But that fails to account for the significant differences between Claiborne and this case. First, according to the allegations, Mckesson had a closer connection to the unlawful components of the protest than Evers did. Mckesson personally led the protest in the field and directed its movements. To be sure, Evers was a protest leader and gave various speeches relating to the boycott. But it was never alleged that Evers actually participated in the particular activities that became unlawful. And so although Evers "led the protest," he did so in a manner that is legally distinguishable from how Mckesson led the protest at issue here.

Second, and relatedly, Mckesson is alleged to have caused the protest to become unlawful more directly than did Evers. Perhaps, as the dissenting opinion says, the protest in Claiborne was "foreseeably violent," but the evidence failed to attribute the foreseeability to Evers. Here, by contrast, Mckesson's organization and operation of the protest in an unsafe manner directly created foreseeable violent conduct. Contrary to the dissenting opinion, there is no tension between the result here and the one in Claiborne….

The negligence cause of action at issue is also consistent with the second theory of protest-leader liability identified in Claiborne. The Court explained that a protest leader could be liable for his actions where it was shown that he or she "were likely to incite lawless action," and that "unlawful conduct … in fact followed within a reasonable period." That is precisely what Doe alleges Mckesson did here. That is, Doe contends that Mckesson organized and directed the protest in an unsafe manner such that it was likely that a violent confrontation with the police would result, and in fact did result. To be sure, this liability theory is seen more commonly in the context of allegedly inciteful speech. But it logically includes other actions tending to incite unlawful behavior.

A close example is National Organization for Women v. Operation Rescue (D.C. Cir. 1994). That case involved a series of protests of clinics that perform abortions. Pro-life demonstrators obstructed access to and physically blockaded several clinics, sometimes involving trespass on and damage to private property. Based on a combination of Virginia state law and federal law, the district court enjoined the protesters from engaging in such behavior, as well as from taking any actions that would incite such behavior. In an order clarifying its injunction, the district court explained that the protesters were prohibited from "specifically planning and organizing unlawful blockades." The protesters initially declined to comply with the injunction, and so the district court held them in contempt and imposed monetary sanctions.

Pertinent here, the D.C. Circuit upheld the injunction and sanctions over the protesters' objection that the orders violated the First Amendment as understood in Claiborne. In doing so, the court carefully distinguished between actions that encourage legitimate expressive activity, which are protected by the First Amendment, and actions that provide for unlawful behavior, which are not. State law may not prohibit "the organizing of lawful demonstrations which may ultimately include unauthorized unlawful acts." But "[i]t is well settled that incitement to specific unlawful acts may be prohibited without running afoul of First Amendment guarantees."

This case would be different if all Mckesson had done was organize a lawful protest, and if an unidentified protester had nonetheless assaulted Doe. But that is not what Doe alleges happened. Rather, Doe alleges that Mckesson organized and led the protest in such a manner that his actions "were likely to incite lawless action."

As described above, these alleged actions include directing the protesters to obstruct a public highway, organizing the protest to begin in front of the Baton Rouge police station, and doing nothing to discourage the demonstrators from looting a grocery store and throwing water bottles at the police, despite Mckesson's allegedly exercising some degree of direction and control of the protest. And as is clear from Doe's injuries, "unlawful conduct … in fact followed within a reasonable period." As explained above, Doe's allegations fit within the "directed, authorized, or ratified" theory set forth by the Supreme Court in Claiborne. In addition, for the reasons discussed here, the allegations also fit within the "likely to incite lawless action" theory….

 

The post Fifth Circuit Judges' Cert. Petition in Deray Mckesson Black Lives Matter Protest Liability Case appeared first on Reason.com.

In Virginia, drivers may personalize their license plates with their own chosen character combinations. Virginia allows them to do so for a fee, and subject to certain restrictions for vulgarity and the like. Curtis Whateley took advantage of this opportunity and applied for a personalized license plate with the characters "FTP&ATF"—by which he meant, "Fuck the Police & Alcohol, Tobacco, and Firearms." Virginia first issued the plate but then revoked it on the grounds that it was vulgar and could be understood to promote violence….

This appeal requires us to address a question that has divided district courts and state supreme courts in recent years: whether the character combinations on personalized license plates (or "vanity plates") are government speech or private speech. Does Virginia speak for itself through the character combinations on the personalized plates it issues—in which case, it is entitled to express the views of its choice? Or do Virginia's personalized plates convey the private speech of drivers like Whateley—in which case, government restrictions on that speech must pass muster under the First Amendment? We conclude that Virginia's personalized license plate messages are private speech subject to First Amendment protection….

Whateley's private speech is entitled to First Amendment protection under the public forum doctrine, but whether he will prevail under that doctrine is a different question. That analysis will turn on the nature of the forum Virginia has provided for private speech on its personalized license plates and on Virginia's reasons for recalling Whateley's "FTP&ATF" message. {Oversimplifying somewhat, in traditional and designated public forums, open to all speakers on all topics, "governments have limited leeway to restrict speech," and restrictions generally are subject to strict scrutiny. In a nonpublic forum, by contrast, speech restrictions "only need to be reasonable and viewpoint-neutral."}

The forum analysis can be complicated and fact-intensive. Compare Mitchell v. Md. Motor Vehicle Admin. (Md. 2016) (holding that Maryland vanity plates are private speech subject to First Amendment scrutiny, but that denial of the plaintiff's requested "MIERDA" message was permissible as a reasonable and viewpoint-neutral restriction in a nonpublic forum), with Hart v. Thomas (E.D. Ky. 2019) (holding that Kentucky vanity plate messages are private speech, and that denial of the plaintiff's "IM GOD" vanity plate violated First Amendment limits applicable to nonpublic fora because it was unreasonable and viewpoint-based). Because "we are a court of review, not first view," we follow our usual practice and leave this issue to the district court on remand.

For more on the court's analysis, and in particular why the case isn't controlled by Walker v. Texas Divisions, Sons of Confederate Veterans, Inc. (2015), which dealt with license plate designs as opposed to the personalized vanity tags themselves, see the opinion.

Matthew William Callahan and Eden B. Heilman (ACLU Foundation of Virginia) represent Whateley.

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Two former George Washington University ("GWU") students and a student organization on behalf of its members sue GWU for its treatment of Jewish students and its handling of on-campus antisemitism. Though the Complaint paints a dark picture, its length—spanning nearly two hundred pages and over one thousand paragraphs—violates basic pleading rules. The Court will thus dismiss the Complaint without prejudice and permit Plaintiffs to file an amended complaint that complies with federal pleading rules….

The Complaint before the Court describes a multi-year pattern of unaddressed antisemitism at GWU that came to a head with the Hamas terrorist attacks in October 2023 and worsened in following months. Sabrina Soffer and Ari Shapiro, two Jewish students who attended GWU, along with an organization called "Compliance, Accountability, Policy, Ethics-Ed," sue GWU over these events and seek damages and a variety of injunctive relief….

Federal Rule of Civil Procedure 8(a) requires complaints contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8 "underscore[s] the emphasis placed on clarity and brevity by the federal pleading rules." …

A complaint may offend Rule 8 in more ways than one. "[E]xcessively long" and "rambling" complaints that are "full of irrelevant and confusing material" violate its requirements. Indeed, while pleading rules generally provide plaintiffs "wide latitude in framing" claims, courts have "unhesitatingly dismissed" complaints that consist of "a labyrinthian prolixity of unrelated" charges. Likewise, "repetitive, discursive and argumentative account[s] of the alleged wrongs suffered by the plaintiff" pose a problem.

Plaintiff's Complaint flouts these requirements. Recall that Plaintiffs' allegations span nearly two hundred pages and over one thousand paragraphs. Significantly shorter complaints often earn dismissal. And much of its length stems from excessive narrative. See Compl. ¶¶ 150–179 (nearly thirty paragraphs "On Jewish Identity and the Meaning of Antisemitism"); id. ¶¶ 455–543 (nearly ninety paragraphs describing speakers and events hosted by the Middle Eastern studies department); id. ¶¶ 714–880 (over 160 paragraphs narrating the encampment day-by day, recounting every communication between students and the administration). Rule 8 prevents Plaintiffs from "forc[ing]" either the Court or GWU "to select the relevant material from [this] mass of verbiage."

Plaintiffs make no attempt to justify the Complaint's length or otherwise address GWU's argument about Rule 8. And unlike the less "regrettable" scenario in which a pro se complaint breaches Rule 8, "the complaint here was crafted and signed by lawyers who are members of the bar of this court." These features favor dismissal.

The Court recognizes the serious nature of allegations at issue. It emphasizes that it dismisses only the Complaint without prejudice rather than dismissing the lawsuit…. The Court accordingly grants Plaintiffs leave to file an amended complaint within 30 days of this Order….

If you really want to, you can read the Complaint here.

The post Error 888: Complaint Too Long appeared first on Reason.com.

New case! Last fall, masked, heavily armed CBP agents raided IJ client Leo Feler's property in Chicago because they saw some construction workers out in front of his home. The agents didn't have a warrant (nor does any exception to the warrant requirement apply), jumped a locked gate, and caused a bunch of damage and left behind puddles of blood. On their way out, they tear gassed neighbors "for fun" (per an agent on bodycam). So we're suing under Bivens, the FTCA, Illinois tort law, and the Westfall Act, and one of these days the Supreme Court is going to say that there is in fact a way to hold federal officers accountable for violating the Constitution. Click here to learn more.

New on the Short Circuit podcast: Tim Sandefur tells us all about his new book Proclaiming Liberty: John Adams, Thomas Jefferson, and the Declaration of Independence.

• Remember how they started restricting the "good Sudafed" because of all the meth? But then there was this other stuff called "PE" that they claimed did the same thing? Turns out it was basically snake oil and that's been known since 2016. Class action plaintiffs: Drug companies did The RICO. District court: No. Second Circuit: Mostly affirmed. If the FDA says snake oil can be sold to fight cold symptoms, then you can't blame manufacturers for repeating those lies. But remanded on the claim that it's "maximum strength."
• Law professors and nonprofit file a slate of grievance complaints against prosecutors in New York State, then bring First Amendment lawsuit to challenge the secrecy of the disciplinary proceedings that ensue. New York: You lose under Younger abstention! And O'Shea abstention too! And your case isn't ripe! District court: Cool it dudes. The plaintiffs absolutely have the right to be here. Also, they're right on the merits. Second Circuit: Chyeah. Attorney-disciplinary proceedings have been public since 1275.

• White supremacist kills 10 and injures three, all victims black, in livestreamed Buffalo, N.Y. grocery store shooting. Were his statements beforehand that were meant to inspire copycat killings First Amendment-protected? District court: Yes. Second Circuit: No, they can be used as an aggravating factor (one of many) when the jury considers the death sentence.
• In which the Third Circuit (over a dissent) holds that "you guys can just go pray somewhere else" is not a defense to an RLUIPA claim.
• Atlantic City casino hotels provide occupancy and pricing data to AI company, which generates "suggested" prices for rooms. Casino guests allege the result is illegal price fixing, leading to significantly more expensive rates. Third Circuit: "Is it ok for a guy named Bob to collect confidential price strategy information from all the participants in a market, and then tell everybody how they should price? If it isn't ok for a guy named Bob to do it, then it probably isn't ok for an algorithm to do it either." Case un-dismissed.
• Federal courts generally aren't permitted to intervene in ongoing state court prosecutions. Third Circuit (over a dissent): And these plaintiffs are challenging Lancaster County, Penn.'s pretrial incarceration procedures, which will not interrupt and has naught to do with the merits of their criminal cases. No Younger abstention. No O'Shea abstention. Case undismissed!
• Octogenarian with medical issues and no criminal record, whose family is all here, and who was told to self-deport in 1998 (but didn't) now seeks to adjust his immigration status. BIA: Bummer, but we can't adjust solely on humanitarian grounds. Third Circuit (unpublished, over a dissent): That is not only wrong, but so wrong that we'll forgive his forfeiture of the argument.
• Allegation: Though he promises not to snitch, Texas inmate (who saw another inmate having sex with a female guard) is attacked with metal fan inside a pillowcase, resulting in, among other injuries, "severely twisted" broken fingers. He's given only Ibuprofen for his "intense, blinding" pain and isn't taken to the hospital for three weeks. District court: Dismissed with prejudice. Fifth Circuit (unpublished): No, some of these claims can go forward.
• Safe harbors aren't just technology that Odysseus was notoriously unable to secure. They're often used in the law, and one in particular gives certain Medicare providers a way to avoid liability. But, says the Sixth Circuit in remanding to an ALJ, the right standard must be applied.
• An 'umble scrivener, your correspondent lacks the writing chops to fully convey the scale of this epic saga, complete with cop allegedly digging up dirt on ex-wife's new beau; and ex-wife and beau suing cop and cop's buddy and Hamilton County, Ohio, for all sorts of things; and ex-wife then getting held in contempt in state-custody proceeding for divulging ex-husband-cop's home address in federal-court filings; and ex-wife then seeking preliminary injunction in federal court against the state-court contempt order. Sixth Circuit: Let no one ever again say that Younger abstention is dreary.
• Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. Second, Sixth, Tenth, Eleventh, and now Seventh and Ninth circuits: No.
• Chobani's "sugar free" yogurt actually contains four grams per serving of allulose, a sugar substitute that doesn't spike blood sugar and is naturally occurring (in foods other than yogurt, like dates). Seventh Circuit: Consumers may not care, but that doesn't mean they haven't been deceived. Case undismissed!
• After a high-speed chase and deployment of stop sticks, Independence, Mo. cops arrest the driver & find a .22 pistol, along with a soda bottle "modified into a smoking apparatus." He admits he's done meth regularly for 10 years. Eighth Circuit: And with only those facts to go on he just might have a Second Amendment defense to possessing a firearm while being an unlawful user of a controlled substance. Reversed & remanded.
• Church offers employee with previous history of abusing children as a babysitter, and he abuses more kids. The church settles with the families and then sues its insurers for declining to cover the church's costs. District court: Insurers win because abusing separate children at separate times in separate places constitutes multiple occurrences. Tenth Circuit: Reversed. It's ambiguous, and Utah law says ambiguity means coverage.
• Oklahoma protestors are charged with felony incitement to riot after they approach a patrol car, yell abuse, then run after the car as it drives away (they later plead guilty to misdemeanors). Two years later, they file a lawsuit alleging that Oklahoma's riot statute is facially unconstitutional and seek a preliminary injunction. Tenth Circuit: Denied. The law is neither facially overbroad nor unconstitutionally vague.
• This Tenth Circuit opinion, dismissing a defamation lawsuit against the producers of a Netflix documentary about the "troubled teen" industry, has it all: First Amendment analysis, a rebuke for citing AI-hallucinated cases, and a citation to The Accountant 2 (Artists Equity 2025).
• Apartment maintenance worker harasses resident, culminating with entering her unlocked apartment and raping her. He was in uniform and had previously sent harassing texts from his work phone. Is his employer liable under the Fair Housing Act? Tenth Circuit: Any member of the public could have entered the unlocked apartment, so no. The fact that he had a master key doesn't help, since he didn't use it.
• Nonprofit that promotes black community empowerment applies to Pinellas County, Fla. for COVID-relief funds. Their first request is initially approved but later revoked, with the stated reason that the project wouldn't directly counteract COVID's effects; the second request is denied outright. Nonprofit: Three other groups that serve predominantly white communities got money despite their projects not directly counteracting COVID's effects. Eleventh Circuit: Those are plausible allegations of First Amendment and Equal Protection Clause violations. Undismissed.
• Two bowfishers sustain severe injuries after they crash into an unmarked, partially submerged duck blind at night in the navigable waters of the United States. But can you even sue the feds for that kind of negligence and wantonness? Eleventh Circuit: Luckily for plaintiffs, they were in waters subject to the Tennessee Valley Authority's purview, and the TVA statute waives sovereign immunity. Concurrence: Sovereign immunity is waived in the other navigable waters, too, and we should reconsider our precedent that wantonly imports the Federal Tort Claims Act's discretionary-function exception into the Suits in Admiralty Act.
• And in en banc news, the Fifth Circuit will not reconsider its decision that a Baton Rouge, La. police officer wounded by a thrown rock or some such can sue a prominent Black Lives Matter activist (who did not throw the rock or incite rock throwing). Dissental: "Citizens deciding whether to organize, publicize, attend, or lend their names to a demonstration must now weigh the risk of financial ruin for an unknown stranger's violence before exercising a First Amendment right."

At the Center for Judicial Engagement, we do not cash in on pop culture like it's a Trojan horse. So this post about judicial opinions quoting a 2,700-year-old poem has no movie spoilers. But you'll learn how litigation can be an "odyssey"; about the stars of the unconstitutional conditions doctrine, Scylla and Charybdis; that APA-compliant review can't work nights like Penelope; that legislative history's like a Siren's song; that Argos's sniff is (wrongly) held to not be a search; and how, even when Homer nods, there's a rosy-fingered dawn on the jurisprudential wine-dark sea.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason.com.

In his response, attorney Cole says that he "want[s] to completely avoid legalese and speak directly to this Court." We will speak directly to him: this is unacceptable. Attorney Cole's response should have included scrupulously accurate and precise citations. Instead, it is yet another sloppy filing that misstates the law and creates more work for this court. We do not know why attorney Cole feels compelled to rush out obviously flawed filings, but this must stop. This type of lawyering is harming attorney Cole's clients, his own professional reputation, and this court's workflow….

And more details:

[P]etitioner misquotes inapplicable statutes and fabricates statutory language…. Petitioner's briefs also contain false case citations…. Finally, petitioner cites cases that do not support the propositions of law for which petitioner cites them. [Details omitted. -EV] …

Citations of fictitious legal authority do not automatically justify striking a brief and dismissing an appeal. Accordingly, we deny respondents' request to strike petitioner's brief and dismiss this appeal. However, we must address petitioner's attorney's pattern of presenting multiple fabricated quotes of statutory language and case citations….

On June 30, 2026, we ordered petitioner's attorney Mason Cole to file a response explaining the false quotations and citations in his briefs by July 14, 2026. Attorney Cole filed his response on July 2, 2026, 12 days early. His response concedes that all the quotations and citations set out above are false for the reasons we have explained. Attorney Cole states that he "frequently use[s] a premier corporate subscription of ChatGPT" to "synthesize complex matters," including this case.

Attorney Cole claims that he "cross-referenced" every citation in his briefs "with Lexis-Nexis to avoid hallucinations." However, he "overlooked" that several of those citations either do not exist, like Harris, or do not stand for the propositions of law for which he cited them, like Abrahamson and Gusciara. Attorney Cole states that his "inability to properly verify the cites is a result of [his] inexperience in appellate court." He proposes that we fine him $1,000 for the nonexistent "citation" of Harris and "$500 for each of the misquoted and mis-stated propositions" of law….

Frustratingly, attorney Cole's response itself contains misstatements of law. Footnote 1 claims that "under 775 ILCS 5/7A-102(D)(2)(a), if the Director determines there is a lack of substantial evidence, the Department will dismiss the charge." The applicable version of section 7A-102 has no subsection (D)(2)(a). The legislature removed subsection (D)(2)(a) as of January 1, 2008. Pub. Act 95-243 (eff. Jan. 1, 2008) (amending 775 ILCS 5/7A-102). Moreover, the "substantial evidence" language attorney Cole purports to quote appears in subsection (D)(3), not (D)(2). And it addresses a scenario in which "the Director determines that there is no substantial evidence," not one in which "the Director determines there is a lack of substantial evidence," as attorney Cole claims.

So, in this one citation, attorney Cole cites a statutory subsection that no longer exists, attributes a quote to the wrong subsection, and then misquotes that subsection. Also in footnote 1, attorney Cole claims that section 7A-102(D)(2) includes the phrase "questions of credibility." It does not. That language last appeared in a version of the statute effective until July 25, 2005….

Finally, our June 30, 2026, order provided that, "[i]f attorney Cole contends that any of the case citations are accurate, he must include a pin cite to the page or paragraph where the proposition of law or quotation appears." A pin cite directs the reader to the exact location of quoted language or a cited principle of law. Without a pin cite, we must search through an opinion to find the language or proposition cited. Attorney Cole did not follow this order. Six citations in his response have no pin cite….

In his response, attorney Cole says that he "want[s] to completely avoid legalese and speak directly to this Court." We will speak directly to him: this is unacceptable. Attorney Cole's response should have included scrupulously accurate and precise citations. Instead, it is yet another sloppy filing that misstates the law and creates more work for this court. We do not know why attorney Cole feels compelled to rush out obviously flawed filings, but this must stop. This type of lawyering is harming attorney Cole's clients, his own professional reputation, and this court's workflow….

The court sanctioned Cole $15,000:

Attorney Cole's briefs contain a total of 10 false citations: 4 false statutory quotations, 1 nonexistent case, and 5 cases that exist but do not contain the cited principle or quoted language. This sanction reflects a $1,500 fine for each false citation and quotation.

We recognize that this rate is somewhat higher than what courts have imposed in the past. See, e.g., Couvrette (fining attorney $1,000 per fabricated quotation and $500 per nonexistent case). But we set a rate of $1,500 per misstatement of law for two reasons.

First, there is no meaningful difference between the various types of false citations and quotations. A fabricated quote, a nonexistent case, and a case that does not say what counsel claims it says are all misstatements of law. They all require opposing counsel and this court to expend unnecessary time and effort addressing those misstatements of law.

The fact that AI hallucinated these citations does not mitigate their falsehood. AI-hallucinated citations are no different than false citations an attorney could create from his own imagination. Therefore, the sanctions rate for all types of false citations and quotations should be the same, as the attorney, not AI, retains ultimate responsibility for what he or she submits to the court.

Attorney Cole's response states that he uses a "premier corporate subscription of ChatGPT" (which is presumably a paid subscription) to draft filings. This case illustrates that, no matter how much one pays for "premier" or "corporate" versions of AI products, it does not negate an attorney's obligation to verify all citations of authority.

Second, as the cases set out above show, AI-hallucinated citations are an increasingly persistent problem in courts nationwide. This indicates that the fines courts are imposing are not enough to deter improper AI use among attorneys. In fact, the prospect of sanctions in this case did not deter attorney Cole from submitting outdated statutory citations and disobeying this court's order to include pin cites in his response. Courts have no choice but to increase fines for AI-hallucinated citations until those fines have a significant deterrent effect.

In addition, the clerk of the Appellate Court, First District, shall send a copy of this opinion to the ARDC [Attorney Registration & Disciplinary Commission]. The Code of Judicial Conduct requires us to "inform the Illinois Attorney Registration and Disciplinary Commission" if "a lawyer has committed a violation of the Illinois Rules of Professional Conduct of 2010 that raises a substantial question regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects."

Here, attorney Cole repeatedly misrepresented the law to this court even after his opponent identified his misstatements to this court and even after being warned that the court was considering sanctions. Moreover, in his response, attorney Cole claims that his "inability to properly verify the cites is a result of [his] inexperience in appellate court." But attorneys verify citations the same way in every court, so this claim raises questions about attorney Cole's fitness to practice law generally….

The post "We Do Not Know Why Attorney Cole Feels Compelled to Rush out Obviously Flawed Filings, but This Must Stop" + $15K Sanction appeared first on Reason.com.

Skaf, an Arab woman, was employed by Google from January 12, 2009, to April 17, 2024….

On October 7, 2023, Hamas and its affiliates in the Gaza Strip launched a terrorist attack on Israel, prompting Israel to attack Hamas in turn. In the wake of these events, Skaf was an outspoken critic of Google's involvement with Israel and, the Complaint alleges, was "increasingly subjected to anti-Arab bias." But Skaf's criticisms of Google for its involvement with Israel long predated the events on and after October 7, 2023.

In May 2021, Google won the bid for Israel's "Project Nimbus, a contract to provide cloud computing infrastructure, artificial intelligence and other technology services to the Israeli government and its military, including and [sic] Israeli military efforts in the occupied territories." At or around the time, Skaf "raised concerns" about whether Project Nimbus adhered to Google's "AI Principles"—which provided, among other things, that Google would not design or deploy artificial intelligence technologies "whose principal purpose or implementation is to cause or directly facilitate injury to people" or "whose purpose contravenes widely accepted principles of international law and human rights." "[I]n response, Google informally flagged" Skaf, but it did not "officially reprimand[ ]" her. In October 2021, Skaf signed a "drop Nimbus petition."

On October 12, 2023, five days after the Hamas attack, Google's Internal Community Management Team ("ICMT")—an entity responsible for moderating content in accordance with Google's Community Guidelines—advised that employees "should avoid discussing the events unfolding in Israel/Palestine" and limit any posts on the subject to "support of their colleagues." On December 4, 2023, Skaf brought a message on an internal messaging platform stating that "Israel will prevail" to the attention of the ICMT. The ICMT emailed Skaf that the post "was not in violation of community guidelines and would not be taken down"—apparently because it had been made before October 12, 2023, and was "grandfathered in."

Shortly thereafter, Skaf asked the ICMT if that meant she could post a meme of a Palestinian flag stating "Palestine will prevail." When she did not receive a response, she posted the meme the very next day. The ICMT promptly removed Skaf's post as "'disruptive' and in violation of" the October 12, 2023 guidance, and temporarily banned her from the internal messaging platform.

Around the same time, Skaf started posting about Project Nimbus and Gaza in another internal Google forum. Through her involvement with these platforms, Skaf allegedly became aware that "many Google employees held anti-Arab animus." One colleague, for instance, asked "why Palestinians bothered to have children." … Skaf [also alleges she] later learned that Google employees were doxxed, stalked, or accused of supporting terrorism because they had spoken out against Project Nimbus or worn a "keffiyeh (Palestinian scarf)" to the office ….

On March 6, 2024, Skaf published a post asking whether Google should cancel Project Nimbus "[t]o avoid complicity in war crimes [and] respect its principles." In response, some colleagues posted memes accusing Skaf "of 'ruining International Women's Day … with her predictably hateful agenda'" or "accusing her of 'supporting terrorists who use sexual violence as a weapon of war.'" Skaf complained to the ICMT, which took down "some but not all of the attacks on her."

On March 8, 2024, Skaf received an email from Google Security notifying her that she had been "doxxed" by having her name, work location, and internal Google profile picture included in a Daily Wire press article. The article included screenshots of Skaf's questions and comments from the internal Google messaging systems about Israel. Shortly thereafter, on March 14, 2026, Skaf filed a complaint with Google's Employee Relations ("ER") about being doxxed and "the racial and/or ethnic harassment, she had suffered since October 7, 2023." Google failed to respond to the complaint or take any corrective action. More significantly, the Complaint alleges that Skaf was the victim of "immediate" retaliation for making her complaint to ER. Specifically, an ongoing discussion of possible transfer—which would have provided Skaf with opportunity for further advancement and promotion—was "abandon[ed]."

In late March 2024, Skaf participated in planning a sit-in protest "demanding the cancellation of Project Nimbus, that Google address the harassment, intimidation, bullying, silencing, and censorship of Palestinian, Arab, Muslim employees and that Google address the mental health crisis among Google employees caused by Project Nimbus." The protest took place on April 16, 2024, in Google's offices in New York, Sunnyvale, and Seattle. In New York, Skaf and others sat on the 10th floor of Google's offices, where they "peacefully distributed leaflets" and "gave speeches" to oppose Project Nimbus and the harassment of Arab, Muslim, and Palestinian employees. Other employees "harassed and filmed" Skaf and her fellow protestors. That conduct violated Google's Code of Conduct, but the employees who engaged in it were not disciplined by Google in any way.

At some point, Google security appeared at the protest. Skaf and the other organizers "constructively engaged with them, quieting the protest, [and] ensuring that they were not blocking the lounge or disturbing others using the space."  The next day, Google terminated Skaf's employment, explaining that a review of her conduct on April 16, 2024, determined that she had violated Google's workplace policies. Skaf was one of fifty Google employees terminated after participating in the April 16, 2024 protest….

Skaf sued on many grounds, some of which were largely unrelated to the protest, but I wanted to focus on two. First, the court allowed her claims of retaliation under antidiscrimination statutes to go forward:

[Skaf alleges] that she was unlawfully terminated for engaging in protected activity—namely, for filing the March 2024 ER complaint and for participating in the April 16, 2024 protest….

Google argues that the April 16, 2024 protest—after which Skaf was terminated—did not constitute protected activity for two reasons: because Skaf and her colleagues were protesting a political issue, not discrimination, and because the protest was disruptive. Those arguments are not without force and may ultimately carry the day, but—assuming the truth of the allegations in the Complaint and drawing all inferences in Skaf's favor, as the Court must—they do not warrant dismissal at this stage.

As to Google's first point, the Complaint explicitly alleges that the protest was an effort to oppose not only Project Nimbus, but also the "harassment, intimidation, bullying, silencing, and censorship of Palestinian, Arab, and Muslim Googlers." And while the Complaint does not plausibly allege that Skaf was treated differently on account of her race or ethnicity, as opposed to her political views, it does plausibly allege that she and her fellow protestors "possessed a good faith, reasonable belief that the employer's conduct qualified as an unlawful employment practice" under Title VII and the NYCHRL.

As to Google's second point, the Complaint explicitly alleges that the protestors were "peaceful," took steps to minimize disruptions to others, and complied with Google security's directives. In light of those allegations, the Court cannot say as a matter of law that the protest was too "disruptive or unreasonable" to warrant protection….

Second, the court rejected her claim of whistleblower retaliation:

[Skaf also sues] under NYLL § 740, which prohibits "[a]n employer" from taking "any retaliatory action against an employee … because the employee … discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation." To state a claim under this provision, "a plaintiff must plead: (1) activity protected by the statute; (2) retaliatory action; and (3) some causal connection between the protected activity and the adverse action."

Significantly, to qualify as protected activity, a complaint must be based on a "reasonabl[e]" belief that the employer is violating a law, rule, or regulation. That is, plaintiff must show not only that he believed that the conduct constituted a violation, but also that a reasonable person in his position would have believed that the conduct constituted a violation."

The employee "need not specify the actual law, rule or regulation violated when making a complaint to a supervisor, [but] she must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct." Moreover, the employee must disclose, or threaten to disclose, that a policy or practice actually violates the law; it is not enough, for example, to say that the conduct is "legally dubious."

In light of these standards, Skaf's claim fails for two reasons. First, she fails to plausibly allege that her complaints about Project Nimbus were based on a reasonable belief that Google, her employer, was violating the law. She contends that she was protesting violations of the U.N. Genocide Convention and the Proxmire Act, a U.S. law that prohibits genocide (and incitement to commit genocide). But both define genocide as "a specific intent crime." And the Complaint is devoid of any allegations indicating that Skaf believed—let alone reasonably believed—that Google had the requisite specific intent.

{Google argues that a Section 740 claim cannot be based on a complaint that the employer violated non-domestic law, such as the U.N. Genocide Convention. The Court need not and does not decide that question, as Skaf's claim fails either way.}

Nor is it enough to suggest, as Skaf does, that she accused Google of complicity in, or aiding and abetting, genocide. Aiding and abetting liability also attaches only if the perpetrator possesses "the intent of facilitating the offense's commission." And while the U.N. Genocide Convention (unlike the Proxmire Act) does prohibit complicity in genocide, Google itself is not a party to the Convention. In short, Skaf fails to plausibly allege that she conveyed a reasonable belief that Google was violating the law.

{Whether it is reasonable to believe that Israel (or Hamas, for that matter) has committed genocide is a deeply contested question upon which the Court need not and does not opine here. That is because the dispositive question for purposes of Skaf's Section 740 claim is whether her protest was based on a reasonable belief that Google, her employer, was violating the law.}

Second, and in any event, Skaf fails to allege that she put Google on notice that she believed it was violating the law. To be sure, Skaf repeatedly protested Project Nimbus. But she never communicated a belief that Project Nimbus was actually "illegal." The April 16, 2024 sit-in, for example, merely demanded that Google "Drop Project Nimbus."

And while Skaf posted a question on an internal message board asking whether Google should cancel Project Nimbus "[t]o avoid complicity in war crimes & respect its principles," that does not constitute a disclosure of (or a threat to disclose) a belief that Google was actually violating the law. Skaf posed the question whether Project Nimbus made Google complicit in war crimes. That is closer to a contention that Google's conduct was "legally dubious" than it is to a contention that Google was actually violating the law. See Thacker v. HSBC Bank USA, N.A. (S.D.N.Y. 2023) (dismissing a Section 740 claim based on the fact that the employee had reported conduct that she believed to be "legally dubious"). On top of that, the Complaint contains no allegations indicating that the internal post was directed to a Google supervisor or a public body, as Section 740 requires….

The post Retaliation Lawsuit Against Google by Ex-Employee Who Engaged in Anti-Israel Protests Can Go Forward in Part, Dismissed in Part appeared first on Reason.com.

Here are a few miscellaneous points that didn't fit into my (already-too-long) essay.

First, Chief Justice Roberts casually announced a principle of judicial supremacy using novel terminology:

Indeed, as a matter of vertical stare decisis, the lower courts have no choice but to follow our lead. When we define a term or establish a background rule, we need not repeat ourselves—once is enough.

The term "vertical stare decisis" has been used in several concurrences and dissents--Justice Kavanaugh has several of them. But the term has never appeared in a majority opinion to refer to the Supreme Court's supremacy. (I found one reference in a case involving vertical stare decisis between a district court and a circuit court.) Nothing in the Constitution requires lower courts to "follow our lead." Vasan Kesavan recently wrote a book-length law review article on the topic. But the Chief Justice pronounced that lower courts have no choice but to bend the knee. If only the Warren Court could have been so concise in Cooper v. Aaron in establishing the principle of judicial supremacy. Still, I don't think this line has gotten nearly enough attention. And it was certainly ignored by the federal judges in Boston and elsewhere who thought the Court's TPS ruling was optional.

Second, there was an important threshold question: did Cook have a cause of action to challenge the President's removal. Justice Thomas argued at some length that the federal courts lacked the authority to provide a remedy to Governor Cook. Justice Thomas points out that the majority fails to "identify[] a right of action . . . that overcomes sovereign immunity." Thomas observed the majority did not identify an "equitable remedy" from common law.

Chief Justice Roberts briefly replied in a footnote that Cook could sue "in equity." 

As a final procedural roadblock, Justice THOMAS contends that Cook may not herself "enforce the terms of the Federal Reserve Act," for "[n]o plaintiff … can sue without a right of action" that "come[s] from Congress." Post, at ––––. That is mistaken. We have often held that plaintiffs may sue "in equity" without a congressionally-provided cause of action " 'to prevent an injurious act by a public officer.' " Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 327, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015) (quoting Carroll v. Safford, 3 How. 441, 463, 11 L.Ed. 671 (1845)); see also W. Baude, J. Goldsmith, J. Manning, J. Pfander, & A. Tyler, Hart and Wechsler's The Federal Courts and the Federal System 1348–1350 (8th ed. 2025) (noting "the availability of Ex parte Young-style litigation to challenge the legality of federal official action"). We see no reason why Cook may not pursue such a challenge here.

This throwaway line allowed Cook to proceed, but will have collateral consequences in countless other areas of the law where private litigants seek to challenge federal actions. Armstrong does not support what Cook did in this case, but the Chief Justice unfortunately breathed new life into that precedent.

Third, in Cook, Chief Justice Roberts ruled that President Trump did not provide Lisa Cook with the appropriate process before firing her. The Court did not spell out exactly what Trump should have done, but stated simply that the President's social media postings announcing the firing were not enough.  The Court could have stopped there. Instead, the Court opted to declare emphatically that the Federal Reserve was independent, and the President could not remove the Commissioner at will.

How the Chief Justice took this tack is unusual. Generally, once Roberts has five votes, he feels no obligation to respond to dissents. For example in Trump v. Barbara, the birthright citizenship case, Justices Thomas and Alito wrote nearly 150 pages of dissents. Roberts spends at most about 5 pages responding to them. Yet in Cook, Roberts responds nearly point-by-point to Justice Thomas, including the dissenter's argument that the purported independence of the Federal Reserve is unconstitutional in light of Slaughter, a decision that Roberts himself wrote. Again, the government did not contest the Fed's independence.

Roberts still engaged in a novel constitutional analysis, upholding the Federal Reserve's constitutionality. In a few breezy paragraphs, he drew an analogy between the Fed and the First and Second Banks of the United States, enacted during the Washington and Madison administrations, respectively. Roberts acknowledged there were differences between the institutions, as the Federal Reserve is "more powerful than its predecessors, managing a vastly more complex economy in a vastly more complex world."

But Roberts makes a glaring pivot that undermines any pretense of originalism. Roberts wrote "We see no reason, however, why our central bank ought to be 'trapped in amber' any more than any other aspect of our constitutional scheme." Here, Roberts cited his own opinion in United States v. Rahimi, which rolled back protections of the Second Amendment, which lacked a clear historical tradition. He also cited Noel Canning, a case he dissented in. All that is needed, Roberts writes, "is that the Federal Reserve remains "consistent with the principles that underpin" the First and Second Banks—namely, that monetary policy should not be subject to political interference." Finally, Roberts invoked Justice Frankfurter, who was no originalist; We thus look to history not as an end in itself, but (as we often do) to give "essential content to undefined provisions in the frame of our government."

Of course, there is the greatest inconsistency. How to reconcile Slaughter and Cook? Justice Thomas observed that Slaughter held that the President can remove a subordinate at "'will,' without cause, without notice, and without a hearing, so long as they exercise any executive power." Justice Barrett, in dissent, opined that the constitutionality of the removal restriction for Federal Reserve Governors is "is in a league of its own" yet is "entirely outside the scope of this case."

Yet, even with the Court's decision to reaffirm the Federal Reserve's independence, Roberts left open in a footnote whether Congress could delegate "additional regulatory powers that are attenuated from monetary policy," thus leaving the status of the agency in some "limbo."

Fourth, there was an unstated fear lurking in the background: if the President could conjure up dubious causes to fire a member of the Federal Reserve, the board's independence could be skirted. The Chief Justice suggested that the courts could scrutinize if the stated rationale provided for firing the Governor was in fact cover for an impermissible motivation. Such a "pretext," Roberts wrote, would be "corrosive of the independence that Congress sought to preserve." Here, Roberts cited his own ruling from Department of Commerce v. New York (2019)--quite possibly his worst decision of all time--which suggested the Trump Administration offered a pretextual reason for adding a question about citizenship to the census forms.

The upshot could not be clearer: Roberts has long been skeptical of the reasons offered by Trump, and would second-guess the elected president when he is suspicious. Yet, in an attempt to hold Trump accountable, Roberts has given the lower courts a green light to ferret out "pretext" in all manner of presidential decisions. As Adrian Vermeule observed, Roberts cooked up a mess.

Especially striking, as I will discuss at the end, is that Cook very arguably contains the Court's strongest assertion to date of a loose, unstructured judicial competence to review presidential findings and conclusion for "pretext" - an assertion that is potentially destabilizing in the extreme, and whose dangers the Court probably ought to consider more fully.

But of course, the Chief Justice blew right past this concern because the Federal Reserve is just too big to fail and orange man bad.

Fifth, Justice Thomas notes all of the firsts. The Court "upholds an injunction against the President's removal of an executive officer for the first time in the Constitution's 237-year history." No court ever "held that any federal statute implicitly requires notice and a hearing when it provides for a term of years limited by removal for cause."

Sixth, observers measure how partisan a Justice is based on how close to the "middle" they vote--not too conservative, not too liberal, Justice right. Justice Clarence Thomas is often assailed as the most ideological Justice. Nonsense. Thomas has an actual judicial philosophy that he steadfastly follows. Likewise, Justice Jackson on the other end has an actual judicial philosophy that she steadfastly follows. The most partisan Justices are those at the middle, who cast their votes going to the left or the right based on their read of the situation at the moment.

Here's looking at you, Chief.

The post <i>Cook</i>ing Up A Blue Plate Special appeared first on Reason.com.